Issues
Does a public official’s act of blocking an individual from their personal social media account constitute state action subject to the First Amendment when the official uses the account to discuss job-related matters with the public but not under any official duty?
This case asks the Supreme Court to determine if public officials engaged in state action by blocking individuals from their social media accounts that were established without official governmental authority but were used for job-related communication with the public. Petitioners Michelle O’Connor-Ratcliff and T.J. Zane argue that their social media pages are not public fora, and their act of blocking individuals from their social media accounts is not a state action because they used personal discretion when exercising control over their accounts and did not base their act on state obligation or authority. Respondents Christopher and Kimberly Garnier counter that the petitioners engaged in state action because even if the government did not explicitly authorize such actions, public officials’ actions related to their roles are equivalent to state actions. Given the widespread use of social media among elected officials, the outcome of this case has significant implications for communication between officials and the public on social media platforms. Furthermore, the Supreme Court will strive to establish a workable standard to determine when the public officials’ non-governmental social media activities can constitute state action, resolving conflicts among circuit courts’ differing standards.
Questions as Framed for the Court by the Parties
Whether a public official engages in state action subject to the First Amendment by blocking an individual from the official’s personal social media account, when the official uses the account to feature their job and communicate about job-related matters with the public but does not do so pursuant to any governmental authority or duty.
Facts
Michelle O’Connor-Ratcliff and T.J. Zane (“Trustees”) created public Facebook and Twitter accounts during their election campaigns for the Poway Unified School District (“PUSD” or “District”) Board of Trustees (“Board”). Garnier v. O’Connor-Ratcliff at 1163. After Trustees won the election, they continued using these platforms to share information with the public, like updates on District and Board issues, invitations to Board meetings, and communications about safety and security matters in the District. Id. Trustees have exclusive rights to create original posts on their public Facebook pages, while the public can comment or use non-verbal emoticons to react on the posts. Id. at 1164. However, Trustees can act as moderators, “deleting” or “hiding” comments and using “word filter” to block comments that contain specific words. Id. Trustees can also limit a user’s interaction by “blocking.” Id.
Christopher and Kimberly Garnier (“the Garniers”), parents in the District, regularly attended public Board meetings and emailed the Board to express their concerns about the District. Id. at 1165. Frustrated with Trustees’ lack of response, the Garniers often left lengthy, repetitive, non-threatening comments about PUSD on Trustees’ Facebook and Twitter accounts. Id. In response to the Garniers’ repetitive comments, Trustees initially deleted or hid them on Facebook. Id. at 1166. Then, Trustees took more decisive action by blocking the Garniers from their accounts. Id. Subsequently, Trustees used Facebook’s “word filter,” practically precluding all comments from being posted but allowing viewers to register non-verbal reactions. Id.
The Garniers then filed a lawsuit “against the Trustees under 42 U.S.C. § 1983, seeking damages and declaratory and injunctive relief,” arguing that Trustees violated their First Amendment rights by blocking them from Trustees’ social media accounts, which they considered public fora. Id. at 1166-67. The district court heavily considered the appearance and content of Trustees’ pages, holding that Trustees blocking the Garniers from their accounts constituted state action because the Trustees’ posts were related to their official status as PUSD Board members. Id. at 1167. The district court emphasized that Trustees’ authority under state law enabled them to post such content on their accounts, holding that Trustees’ social media pages are public fora under the First Amendment. Id. Eventually, the district court granted injunctive and declaratory relief for the Garniers. Id. The court reasoned that even if the Trustees blocked the Garniers because of the repetitive nature of comments, rather than the content, the action was not adequately tailored to serve state interest. Id.
Trustees appealed to the United States Court of Appeals for the Ninth Circuit. Id. The court affirmed the holding that Trustees, as state actors, violated the Garniers’ First Amendment rights when they blocked the Garniers from the social media pages, deemed as public fora, without narrowly tailoring their actions to serve governmental interests. Id. at 1177. In issuing judgment, the Ninth Circuit focused on the state-action issue, pointing out the different approaches between the circuit courts. Id. at 1174. The Ninth Circuit rejected the Sixth Circuit’s approach of focusing “on the actor’s official duties and use of government resources or state employees” in determining whether Trustees engaged in state action (the “Duty-Authority Test”). Id. at 1176-77. Instead, the Ninth Circuit considered if Trustees “self-identified as a state employee and generally purported to be a state officer at the time of the alleged violation,” using the pages to “perform actual or apparent duties of their offices” (the “Appearance-Purpose Test”). Id. at 1177. The United States Supreme Court granted certiorari on April 24, 2023. Brief for Petitioners, O’Connor-Ratcliff and Zane at 1.
Analysis
THE TEST FOR STATE ACTION OF GOVERNMENT OFFICIALS
Trustees argue that a public official’s action needs to invoke state duty or authority to constitute state action, based on the dual purpose of the state-action doctrine. Brief for Petitioners, Michelle O’Connor-Ratcliff and T.J. Zane at 16. Trustees maintain that the two critical functions of the state-action doctrine are ensuring that (1) the State is responsible only for actions it controls and (2) protecting individual liberty from expansive governmental control. Id. at 17–18. Trustees assert that these constitutional purposes are in line with state-action precedents’ core principle that any conduct that allegedly violates a federal right must be “fairly attributable to the State.” Id. at 18. Trustees argue that the Supreme Court applies this principle in its two-pronged state-action test examining both the conduct and actor, with an overarching goal to discern state involvement behind individual actions. Id. at 19. The first prong assesses whether the contested action arises from state-created authority or responsibility (“Duty-Authority Test”), while the second prong determines if the actor functions as an equivalent to the State. Id. Trustees emphasize that the Supreme Court has found private entities to qualify as state actors only in “a few limited circumstances.” Id. Trustees maintain that government officials, as private individuals also holding public office, should not be subject to the state-action level of scrutiny for their actions conducted in their private capacities. Id. at 21–22. Trustees assert that an actor’s status as a public official does not automatically transform the actor’s conduct into state action unless the conduct derives from state duty or authority. Id. at 23.
The Garniers counter that the Duty-Authority Test is designed to address private entities and is therefore irrelevant in cases involving public officials. Brief for Respondents, Christopher Garnier and Kimberly Garnier at 22. Instead, the Garniers maintain that the Supreme Court should adopt a comprehensive approach assessing whether the government official’s action appears to act under state authority and whether these actions advance governmental objectives (“Appearance-Purpose Test”). Id. at 29–32. The Garniers assert that the state-action doctrine differentiates between governmental and private actions to decide if a party falls under constitutional restrictions exclusive to state actors. Id. at 18. The Garniers contend that government officials’ actions are inherently governmental when they conduct their roles. Id. The Garniers emphasize that the legal history from the time the Fourteenth Amendment was ratified suggests that public officials’ actions in their roles are equivalent to the actions of the state, even if the government did not explicitly authorize those actions. Id. at 22–23. Moreover, the Garniers argue that precedents in Section 1983 suits held that government officials can be liable for constitutional violations even if the government is not directly at fault. Id. at 21. The Garniers assert that the Supreme Court thus presumes state action in cases where government officials do their job, while it examines private entities’ conduct by first determining whether they may fairly qualify as state actors. Id. at 21–22. The Garniers further highlight that the Supreme Court has only one narrow exception to the presumption of a government official’s state action, where a public defender was expected to act as an adversary against the state and not for the state interest. Id. at 20.
STATE ACTION AND SOCIAL MEDIA
Trustees argue that their conduct at issue—whether they identify the conduct as blocking the Garniers or, in a broader sense, the operation of the account—is not state action under the Duty-Authority Test because they acted in their private capacity rather than deriving from state duty or authority. Brief for Petitioners at 23–24. Trustees also contend that the lack of state law or policy that requires a public official to operate a social media page, as well as the absence of any funding or control by the government, verifies that the social media page does not carry out any official responsibilities to interact with constituents. Id. at 24. Instead, Trustees argue that social media accounts are private digital property operated in one’s personal capacity and thus cannot instantly transform into a public forum just because a public official uses them to engage with the public. Id. at 29. Trustees also claim that even under the Appearance-Purpose Test, actions on their social media pages do not constitute state action. Trustees reason that their social media pages, which displays campaign slogans and political activities, do not mislead any reasonable social media user to believe that they evoke governmental authority. Id. at 41–42. Moreover, Trustees assert that their social media pages do not serve the purpose of performing their duties because the government did not obligate them to use their social media to communicate with the community. Id. at 47.
The Garniers counter that communicating with the public while blocking specific individuals falls under the scope of government officials’ duties and Trustees’ conduct therefore constitutes state action under the Duty-Authority Test. Brief for Respondents at 29. The Garniers contend that Trustees overlook both public records laws and the Westfall Act. Id. at 25. Both laws recognized government officials’ use of private resources for job-related communications to be part of their job. Id. at 29. The Garniers also point out that local laws define one of Trustees’ duties as communicating with the public, and the PUSD Board’s bylaws explicitly acknowledge the possibility of using “social networking sites” for this purpose. Id. at 29–30. The Garniers assert that Trustees’ argument characterizing social media accounts as private property should not affect the state action analysis because, consistent with the common practices among government officials, Trustees relied on their personal resources to fulfill their governmental responsibilities. Id. at 35–37. The Garniers further contend that Trustees’ actions on their social media would also qualify as state action under the Appearance-Purpose Test. The Garniers suggest that Trustees presented their social media pages to seem like an official platform for district communications by, for example, using the label “Government Official” and suggesting in its posts that the social media account conducts official district actions. Id. at 32–33. The Garniers also contend that Trustees set official communication channels distinct from their separate personal social media pages for private interactions, thus delineating between their personal and governmental roles. Id. at 33.
INFRINGING ON FIRST-AMENDMENT RIGHTS
Trustees argue that broadening the state-action doctrine’s scope to encompass personal social media accounts would infringe on public officials’ First Amendment rights. Brief for Petitioners at 30. Trustees contend that public officials will lose the freedom to control content on the platform they personally created. Id. at 30–31. Furthermore, Trustees argue that the government officials’ own speech can be subject to state control when the state could expand its control to the extent that it dictates content on the officials’ social media account. Id. at 32. Trustees assert that the Ninth Circuit’s Appearance-Purpose Test, which focuses on whether public officials’ accounts have proper disclaimers, potentially violates First Amendment protections by determining the nature of a social media account based on its content, which would qualify protected speech. Id. at 32–33.
In opposition, the Garniers argue that Trustees’ interpretation of limiting the state-action doctrine in relation with First Amendment rights is flawed. Brief for Respondents at 43. The Garniers contend that the First Amendment should guide these concerns, instead of the state-action doctrine. Id. The Garniers also point out that Trustees intentionally did not challenge the Ninth Circuit’s holding that blocking the Garniers based on an “unspoken policy” was unconstitutional. Id. at 45. The Garniers assert that the First Amendment does not mandate government officials to design their social media to maximize public engagement but rather allows them to establish fair time, place, and manner restrictions on how the public communicates with them. Id. at 43–44. Because the First Amendment doctrine can by itself protect expressive interests of government officials, the Garniers contend that the Supreme Court should not apply state-action doctrine when analyzing public employee speech. Id. at 46.
Discussion
EFFECT ON PUBLIC OFFICIALS
In support of Trustees, the California School Boards Association (“Association”) argues that the Duty-Authority Test would provide clear guidance for guide board members to engage in safe and predictable social media activities. See Brief of Amici Curiae California School Boards Association, in support of Petitioners at 10. The Association emphasizes that board members need practical guidance to determine whether their social media posts constitute state action, especially when the rapidly changing social media features demand courts to devise a uniform and workable standard in examining public officials’ accounts across different platforms. Id. at 5-6. Moreover, also in support of Trustees, the National Republican Senatorial Committee (“NRSC”) states that public officials’ ability to control the content of their social media accounts is important to protect the accounts from users’ harassing behavior. See Brief of Amicus Curiae NRSC, in support of Petitioners at 15-16. The NRSC worries that due to the Ninth Circuit’s impractical test, officials will chill their communication on their accounts to avoid the risk of litigation. Id. at 19.
In contrast, the American Civil Liberties Union Foundation, along with two other civil liberties groups (“ACLU”), in support of the Garniers, contends that the Ninth Circuit’s Appearance-Purpose Test provides easy guidelines for officials to follow. See Brief of Amici Curiae The American Civil Liberties Union Foundation et al., in support of Respondents at 11-12. The ACLU elaborates that the Appearance-Purpose Test suggests that officials are acting in their private capacity so long as they do not use their social media accounts to conduct official business and do not hold themselves as officials conducting official business, a rule that would be straightforward for officials to follow. See id. In addition, Protect the Foundation, in support of Garniers, argues that adopting the Appearance-Purpose Test would encourage public officials to make clear distinctions on their social media accounts about whether their accounts constitute official activity. See Brief of Amicus Curiae Protect The First Foundation, in support of Respondents at 12-13.
EFFECT ON SOCIAL MEDIA USAGE
NRSC asserts that adopting the Ninth Circuit’s Appearance-Purpose Test would force public official candidates to retain expressions dissonant with their political messages on their social media accounts. Brief of NRSC at 19. NRSC argues that the Ninth Circuit failed to appropriately consider that it is critical for incumbent officials to communicate their official actions in social media for their reelection campaign because such speech persuades electoral voters to support the officials’ conduct in their office. Id. at 12-13. Furthermore, Tennessee and fifteen other states (“Tennessee”) argue that public official candidates increasingly rely on social media platforms for their electoral campaign because they allow candidates to gain wide publicity by conveying campaign messages. See Brief of Amici Curiae the State of Tennessee et al., in support of Petitioners at 11-12. Tennessee worries that courts will sweepingly categorize officials’ campaign advocacy as state action by applying the Ninth Circuit’s test, which would as a result discourage social media usage by public official candidates. See id. at 12.
Nevertheless, the First Amendment Clinics, Citizens, and Journalists (“First Amendment Clinics”) counter that social media provides the public a significant opportunity to communicate directly with public officials and petition the government by using social media’s interactive features such as reactions and messaging functions. Brief of Amicus Curiae of First Amendment Clinics, Citizens, and Journalists (“First Amendment Clinics”), in support of Respondents at 19. Accordingly, the First Amendment Clinics argue that blocking people from officials’ social media pages due to their critical views would create a chilling effect and lead to a decrease in public interaction on public officials’ social media pages and discourage public discourse. Id. at 20-23. Moreover, Electronic Frontier Foundation and two other First Amendment organizations (“EFF”), in support of the Garniers, emphasize that public access to social media has become crucial because governments increasingly use social media to convey important public information, such as public safety information and governmental services information. See Brief of Amici Curiae Electronic Frontier Foundation et al., in Support of Petitioner Kevin Lindke and Respondents Christopher Garnier, et Ux. at 52-53. Thus, EFF argues that allowing public officials to block individuals from their social media accounts used for governmental purposes based on their viewpoints would lead to decreased access to public information among members of the public. Id. at 53-56.
Conclusion
Acknowledgments
Additional Resources
- Clay Calvert, The Supreme Court’s next target: social media, The Hill (May 4, 2023).
- Susan Frederick, Can Public Officials Block Critics on Social Media? Supreme Court to Decide., National Conference of State Legislatures (May 2, 2023).